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Ld. Counsel relies on the provisions of Article 45 of Schedule 1A of the Indian Stamp Act relating to Stamp-duty on instruments in West Bengal."

10. The executing Court considering the materials on record held:-

"From the case record of Title Suit No. 1843 of 2005, it is crystal clear that the Court asked office to assess the stamp duty for drawing up the final decree. Stamp duty was paid by the Decree holder as per office report and the Court accepted the same.

11. Once against the petitioner herein has raised the point that no Final decree can be drawn up without the total stamp duty being paid in respect of the total property to be partitioned.

12. In course of hearing, the opposite parties/decree holders undertake to pay the total stamp duty for drawing up the final decree in respect of the total property to be partitioned.

13. As of now, admittedly only the plaintiff/decree holder/opposite parties has paid stamp duty in respect of his declared share in the suit property.

12. As to Maksudan's case (supra), we state that it had not been correctly decided. Limitation does not begin to run from the date when direction is given to pass final decree. Mere giving of direction to supply stamped paper for passing final decree does not amount to passing a final decree. Until the final decree determining the rights of the parties by metes and bound is drawn up and engrossed on stamped paper(s) supplied by the parties, there is no executable decree. In this behalf, it is necessary to note that s.2(a) of the Bombay Stamp Act, 1958, as amended by the local Act, provides that a decree of civil. court is required to be stamped as per Article 46 in Schedule-1. Section 34 thereof lays down that "no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer unless such instrument is duly stamped".

Therefore, executing court cannot receive the preliminary decree unless final decree is passed as envisaged under Order 20 Rule 18(2). After final decree is passed and a direction is issued to pay stamped papers for engrossing final decree thereon and the same is duly engrossed on stamped paper(s), it becomes executable or becomes an instrument duly stamped. Thus, condition precedent is to draw up a final decree and then to engross it on stamped paper(s) of required value. These two acts together constitute final decree, crystallizing the rights of the parties in terms of the preliminary decree. Till then, there is no executable decree as envisaged in Order 20 Rule 18(2), attracting residuary Article 182 of the old Limitation Act. Contrary views of the High Courts, are not good law. A Division Bench of the Andhra Pradesh High Court in Smt. Kotipalli Mahalakshmamma v. K. Ganeswara Rao, AIR 1960 AP 54, correctly decided the question of law which held that the limitation begins to run only after a final decree is engrossed on stamped papers."